Citation Nr: 1511289
Decision Date: 03/17/15 Archive Date: 03/27/15
DOCKET NO. 98-15 583A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUES
1. Entitlement to an initial rating greater than 10 percent effective April 21, 2000, for patellofemoral syndrome of the right knee.
2. Entitlement to an initial rating greater than 10 percent effective April 21, 2000, for patellofemoral syndrome of the left knee.
3. Entitlement to a nonservice-connected pension.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Francis, Counsel
INTRODUCTION
The Veteran served on active duty from December 1991 to August 1995.
This appeal comes before the Board of Veterans' Appeals (Board) from a December 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York that granted, in part, service connection and assigned a single 10 percent rating effective July 9, 1995, for bilateral knee disorder.
The appeal also comes before the Board from a July 1997 rating decision of the RO that denied, in part, a nonservice-connected pension.
In an October 1998 substantive appeal, the Veteran requested a Board hearing at the RO. She withdrew the request in writing in March 2000.
In February 2004, the RO granted separate ratings of 10 percent effective April 21, 2000, for patellofemoral syndrome of the right and left knees.
In December 2004, the Board granted initial ratings of 10 percent from July 9, 1995 to April 20, 2000, for patellofemoral syndrome of the right and left knees and remanded the appeal for increased ratings effective April 21, 2000, and for nonservice-connected pension.
In March 2008, the RO found clear and unmistakable error in its December 1995 rating decision which assigned an initial effective date for service connection for bilateral patellofemoral syndrome and revised the effective date to August 8, 1995, the day following discharge from active service.
In March 2009, the Board again remanded these claims for further development of the evidence.
During the pendency of the appeal, claims for service connection for asthma, low back disorder, gynecological disorder, sinusitis, and posttraumatic stress disorder also were considered. As service connection was granted by the Board in February 2004 and March 2009 and by the RO in September 2008 and October 2012, none of these claims are on appeal.
This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.
In May 2013, the RO denied entitlement to a total disability rating based on individual unemployability. In a January 2015 brief to the Board, the Veteran's representative raised the issue of a TDIU based on the results of a July 2012 VA mental health examination and the Veteran's lack of employment. The Board notes in this regard that an increased rating claim for PTSD is not appeal, so the representative's argument cannot be considered part of the increased rating claims currently on appeal. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the January 2015 brief is not a timely notice of disagreement with the May 2013 rating decision, the issue of a TDIU due exclusively to service-connected PTSD has been raised by the representative but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The Board will consider January 2015 brief in the context of the claim for a nonservice-connected pension below.
FINDINGS OF FACT
1. The Veteran's patellofemoral syndrome of the left knee is manifested by noncompensable limitation of motion with pain, weakness, lack of standing, sitting, and walking endurance, and moderate subluxation of the patella but without consistent imaging evidence of arthritis, ankylosis, cartilage damage, nonunion or malunion of the tibia and fibula, or genu recurvatum.
2. The Veteran's patellofemoral syndrome of the right knee is manifested by noncompensable limitation of motion with pain, weakness, lack of standing, sitting, and walking endurance and slight subluxation of the patella but without consistent imaging evidence of arthritis, ankylosis, cartilage damage, nonunion or malunion of the tibia and fibula, or genu recurvatum.
3. The Veteran served on active duty greater than 90 days during the Persian Gulf War.
4. The Veteran's disabilities individually or in combination do not preclude all forms of substantially gainful employment and are not permanent and totally disabling with reasonable certainty to continue for the life of the Veteran.
CONCLUSIONS OF LAW
1. The criteria for an initial rating of 20 percent, and no higher, effective April 21, 2000, for patellofemoral syndrome of the left knee are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (West 2014).
2. The criteria for an initial rating greater than 10 percent effective April 21, 2000, for patellofemoral syndrome of the right knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.24, 4.40, 4.45, 4.71a, DC 5257 (West 2014).
3. The criteria for a nonservice-connected pension are not met. 38 U.S.C.A. §§ 1513, 1521, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.3 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009).
In the instant case, the RO received the Veteran's initial claim for service connection for bilateral knee disorder in August 1995 and for a nonservice-connected pension in April 1997, both prior to enactment of the VCAA in November 2000. Where the initial unfavorable decision was rendered prior to the enactment of the VCAA, the AOJ did not err in failing to comply with the timing requirements of the notice. The Court noted that, in such cases, a Veteran would still be entitled to "VCAA content-complying notice and proper subsequent VA process." See Pelegrini, 18 Vet. App. at 112.
Regarding the bilateral knee claims, in January 1996, the Veteran first disagreed with the initially assigned rating. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, in December 2004, the Board decided the issue of the appropriate initial rating through April 20, 2000, but continued to develop the downstream issue since April 21, 2000. Therefore, as the Veteran appealed the initially assigned rating, and notwithstanding the Board's partial resolution, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
With respect to the pension claim, following the Board's December 2004 remand, the Appeals Management Center (AMC) provided notice the same month that explained the Veteran's and VA's respective responsibilities to obtain relevant evidence to substantiate several claims including for a nonservice-connected pension. This notice did not contain the specific requirements for the pension. Although adjudicative documents may not substitute for adequate notice, the AMC provided the criteria to substantiate eligibility for a nonservice-connected pension in a September 2008 Supplemental Statement of the Case. Through her representatives, the Veteran has displayed actual knowledge that eligibility for a nonservice-connected pension includes consideration of the severity and permanence of her disabilities and their effect on employability. Notwithstanding the notice error, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield, 444 F.3d at 1333-34.
Relevant to the duty to assist, the Veteran's service treatment and personnel records, VA and private treatment records, lay statements from the Veteran, and the results of VA examinations in September 1995, February 1997, April 2000 with an addendum in February 2004, April 2007, March 2012, July 2012, and October 2012 have been obtained and considered. The Veteran has not reported and the record does not show that she has been awarded benefits by the Social Security Administration. Moreover, the Veteran has not identified any other additional outstanding records that have not been requested or obtained.
The Board remanded the claims in December 2004 to obtain a current VA examination in April 2007 and in October 2012. The AMC neglected to readjudicate the claims in a September 2008 supplemental statement of the case and the Board remanded the claims again in March 2009 to complete this action. As the AMC readjudicated the claims in a May 2013 supplemental statement of the case, the Board finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998).
Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case and any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claims.
Bilateral Patellofemoral Syndrome
The Veteran served as a U.S. Army supply support specialist, including in Somalia from October to December 1993. The Veteran contends that her patellofemoral syndrome of the right and left knees are more severe than are contemplated in the 10 percent rating each since April 21, 2000. The Veteran also contends that she is unemployable as a result of disabilities, individually or in combination, that are reasonably certain to continue throughout her life.
Laws and Regulations
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R.
§ 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R.
§ 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Since the Veteran timely appealed the rating initially assigned for her disabilities, the Board must consider entitlement to "staged" ratings to compensate for times since filing the claim when the disabilities may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).
In determining the degree of limitation of motion, the provisions of 38 C.F.R.
§§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.
The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).
Degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2014).
The rating schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the knee to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the knee to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5260, 5261 (2014).
For rating purposes, normal range of motion in a knee joint is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II (2014).
The VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under DCs 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The General Counsel did not expressly address whether separate ratings are appropriate for cartilage damage and instability.
Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5258 (2014). Separate ratings under DC 5258 and DCs 5003/5010 are not appropriate because DC 5258 also contemplates manifestations of limited motion including locking as a result of dislocated cartilage. VAOGCPREC 9-98 (Aug. 14, 1998).
When evaluating musculoskeletal disabilities, in addition to applying schedular criteria, VA may consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).
Factual Background
Service treatment records show that the Veteran sought treatment for bilateral knee pain starting during basic combat training in 1992. The symptoms increased during the remainder of service, more severely on the left than right, and the disorder was refractory for treatment. The Veteran had difficulty climbing stairs and sitting with bended knees and was unable to run, participate in sports, or continue her duties as a field laundry specialist. Imaging studies were negative, but a medical examination board diagnosed bilateral patellofemoral syndrome. The Veteran received an honorable medical discharge.
Although ratings prior to April 21, 2000 are not on appeal, the Board will briefly review the history of treatment of the disorders. During a VA orthopedic examination in September 1995, the Veteran continued to report that she could not climb stairs or bend her knees. Physical examination revealed minimal fluid in the knees, but there was no instability of either knee to manual medial and lateral counter pressure. The range of motion of the right knee was from 0 to 125 degrees, and the range of motion of the left was from 0 to 120 degrees. In December 1995, the RO granted service connection and a single 10 percent rating for bilateral patellofemoral syndrome under Diagnostic Code 5003 for degenerative arthritis.
In October 1996, imaging studies of the left knee identified degenerative joint disease but without effusion. An additional VA examination was conducted in February 1997 which revealed fluid in both knees, more so on the left. There was crepitation in the left knee. There was no instability of either knee to manual medial and lateral counter pressure. Range of motion was from 0 to 110 degrees, bilaterally. X-rays of both knees were normal, with smooth articular surfaces and well-preserved joint spaces. No joint effusion was noted. The Veteran participated in a course of physical therapy.
The Veteran was afforded a VA examination in April 2000. She complained of having pain, weakness, stiffness, swelling and locking of the left knee with flare-ups caused by weather, standing or walking too long, and climbing stairs. She reported working as a security guard in a shelter. On physical examination, the Veteran walked with a limp. Range of motion of the Veteran's right knee was from 0 to 128 degrees, and range of motion of the left was from 0 to 102, with pain and discomfort. There was instability of both knees to manual medial and lateral counter pressure. X-ray studies revealed normal knees, with no change from the February 1997 X-ray examination. A May 2000 MRI of the left knee showed lateral subluxation of the patella with a bone bruise in the posterior aspect of the patella, thinning of the retropatellar cartilage, a cyst in the posterior aspect of the lateral femoral condyle, and small joint effusion. Although the examiner noted hypermobile patella, there was no joint laxity. In a February 2004 addendum, the VA examiner indicated that the physical findings supported a final diagnosis of derangement of the knees.
In a February 2004 rating decision, the RO determined that separate 10 percent evaluations for the right and left knee patellofemoral syndrome were under Diagnostic Code 5257, effective April 21, 2000. The RO also noted that previous examinations and records had not documented joint instability.
In December 2004, the Board denied ratings in excess of 10 percent for each knee from July 9, 1995 to April 20, 2000, noting that Diagnostic Code 5003 provided for a 10 percent rating for degenerative arthritis of each major joint, but remanded the claim for additional development and readjudication of bilateral knee ratings from April 21, 2000 including an additional VA examination.
VA primary care treatment records from December 2000 to November 2012 show recurrent reports by the Veteran of chronic left knee pain with intermittent swelling with temperature changes. The Veteran reported difficulty sitting for long periods of time, extended walking, and stair climbing. The Veteran was advised to use over the counter medication for pain. There is no record of further physical therapy or prescriptions for the use of support devices for mobility. The Veteran reported working as a security guard until 2007 and thereafter provided home care for her disabled father.
In April 2007, a VA physician noted a review of the claims file and accurately summarized the history of injury and treatment of the knees. The Veteran reported that she had worked as a security guard in a sedentary position for 10 years but had recently become unemployed. She reported undergoing a magnetic resonance image study three to four years earlier. However, the physician was unable to find a record of this study and referred to the imaging obtained in May 2000 as noted above. The Veteran acknowledged that she was not receiving any on-going treatment. The Veteran reported episodes of moderate to severe knee pain, daily on the left and once or twice per month on the right, precipitated by weather changes and extended sitting, walking, or climbing stairs. She reported buckling, locking, and clicking on the left side and that she occasionally used an elastic sleeve and cane. On examination, range of motion was zero to 110 degrees after three repetitions limited by low back pain. The physician noted a slight varus deformity of both knees but no medial or lateral instability. There was lateral patella subluxation with tenderness, clicks, and grinding on the left side. The physician observed a normal gait and the ability to walk on toes and heels. The physician diagnosed bilateral patellofemoral syndrome with subluxation of the patella and likely chondromalacia patella. Notwithstanding the repetitive motion testing, the physician noted an inability to determine whether there was an additional loss of function caused by weakness, fatigue, lack of coordination or endurance.
In a March 2012 VA general medical examination, the Veteran continued to report left knee buckling, clicking, and locking and daily pain with exacerbations during rainy or cold weather that precluded extended walking, standing, or any stair climbing. She reported using over the counter medication and that she did not receive on-going treatment. She reported using a cane on occasion but did not do so during this examination. She reported that the knee disorders impaired her work as a security guard and that she had been laid off and was now unemployed. Multiple searches for another job were unsuccessful. Range of motion was zero to 100 degrees on the left and zero to 110 degrees on the right. There was slight swelling and tenderness on the left joint line. The examining physician noted that the combined impairment of the bilateral knee and low back pain prevented her from securing or filing for gainful employment but narrowed the opinion to prevention of extended standing, walking, lifting, sitting, or climbing stairs as would be required of a security guard. The Veteran reported during this examination and in a July 2012 mental health examination that she had been laid off because her employer went bankrupt.
In October 2012, the VA physician who performed the April 2007 examination did not note a review of the claims file but accurately summarized the history, and noted the same symptoms as had been reported and observed in previous examinations. The Veteran continued occasional use of an elastic sleeve on the left knee and a cane during exacerbations caused by extended walking or standing. Range of motion was zero to 90 degrees on the left and zero to 100 degrees on the right but with pain on motion but no additional loss of range of motion on repetition. However, the physician noted weakened movement on the left and interference with sitting, standing, and weight bearing. There were no meniscal complications and no joint instability but there was patellar instability. The physician noted positive crepitus and mild suprapatellar effusions in both knees. The physician noted the Veteran's contention that her PTSD and low back pain impaired her ability to work, but relevant to the knees, the physician found that the Veteran should avoid running, kneeling, stooping, squatting or prolonged stair climbing and limit ambulation to 10 blocks and standing to 20 minutes at a time.
Analysis
The Board finds that a rating of 20 percent, and no higher, effective April 21, 2000, for patellofemoral syndrome of the left knee is warranted. The Board also finds that a rating greater than 10 percent effective April 21, 2000, for patellofemoral syndrome of the right knee is not warranted. The Veteran is competent and credible in her reports of symptoms, limitations, and means for self-treatment because her reports are consistent over the entire period of the appeal and have been accepted by all clinicians and examiners. The weight of her credible reports and observations of examiners is that she experienced knee pain on motion with clicking, locking, and weakness on the left that requires the use of over the counter medication and occasional use of an elastic support and cane during exacerbations caused by rainy or cold weather or overexertion from extended walking, standing, sitting, or stair climbing.
Clinical observations have been very consistent prior to and since April 21, 2000. Range of motion is limited bilaterally but is greater than 60 degrees in flexion and to zero degrees in extension. Therefore a rating in excess 10 percent under DCs 5260 and 5261 is not warranted. The Veteran was diagnosed with bilateral degenerative arthritis. However, imaging studies of record are limited to an October 1996 study that showed degenerative changes on the left knee, but normal study in 1997 and a left knee magnetic resonance image in May 2000 that did not show degenerative changes but rather multiple patellar deficits. Therefore, ratings under DC 5003 are not warranted in the absence of imaging evidence of arthritis. The Veteran reported buckling and locking of the left knee. Although there was imaging of the thinning of the cartilage and some observations of mild effusion on the left, there were no images or clinical observations of dislocated, loose, or removal of cartilage as is addressed in DCs 5258 and 5259. There is no evidence of ankylosis, malunion or nonunion of the tibia or fibula, or genu recurvatum to warrant consideration under DCs 5256, 5262, or 5263. Therefore, the Board finds that the patellar subluxation and associated deficits and symptoms are best considered moderate on the left and slight on the right in consideration of limitations in mobility and are most appropriately rated under DC 5257 for other knee impairment.
There is clinical and imaging evidence of subluxation of the patellas, particularly on the left, even though multiple clinical evaluations showed no overall joint subluxation or medial or lateral instability. There are clinical observations of weakness and occasional swelling of the left knee. The Veteran reported locking and buckling but there are no reports of falling or clinical observations of joint laxity or instability. The Board recognizes that the Veteran has consistently experienced pain, limitations of mobility, extended sitting, occasional left knee swelling, and left side weakness and required the use of a brace on the left and occasional use of a cane. Therefore, the Board finds that the disabilities are best evaluated as moderate on the left and slight on the right.
On the other hand, the Veteran's symptoms have been substantially constant during her ten years of employment as a security guard. She reported being laid off from her job because of her employer's financial status and not because she was unable to continue to perform her duties. She is able to walk up to 10 blocks, stand for 20 minutes, and has not reported limitations to the extent that she cannot drive an automobile or perform daily activities such as shopping and care for her disabled family member because of the bilateral knee disabilities. She has not received any on-going treatment, therapy, or recommendations for surgical intervention during the entire period of the appeal. Therefore, the Board finds that ratings higher than 20 and 10 percent for more severe symptoms are not warranted.
The Board considered whether referral for extra-schedular ratings is warranted in this case. For extra-schedular consideration, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability; if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no extra-schedular referral is required. 38 C.F.R. § 3.321(b)(1); Thun at 115.
In the second step of an inquiry into whether a claimant is entitled to extra-schedular rating, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the regional office or the Board of Veterans Appeals must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the extra-schedular regulation as "governing norms." Id.
When an analysis of the first two steps in an extra-schedular inquiry reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. 38 C.F.R. § 3.321(b)(1). Id.
In this case, the Board finds that the applicable schedular criteria are adequate because they contemplate the Veteran's structural deficits, symptoms of pain and swelling, and limitations of motion and activity by providing ratings in qualitative terms such as slight, moderate, and severe that permit inclusion of all features of the disability with higher ratings available for more severe symptoms and levels of impairment.
The Board further notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir., 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. The appeal of individual ratings only involves evaluation of right and left knee disabilities. The Board will address further the combined impairment in the context of the claim for a nonservice-connected pension below.
Finally, the Board acknowledges that, if the claimant or the record reasonably raises a question as to whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a TDIU as a result of that disability is warranted. See Rice, 22 Vet. App. at 447. The Veteran reported to clinicians that she ceased work in 2007 because she was laid off when her employer became bankrupt. However, she also contended that her knee disabilities combined with back and psychiatric disabilities impaired her ability to obtain another job. The Board will address the combined effects in the context of the pension claim below. Referring to the analysis for a higher rating above, the Veteran worked for many years in a sedentary security job with the same, stable knee symptoms. Although her mobility is limited, she is able to walk up to 10 blocks, stand for 20 minutes, and has not reported limitations to the extent that she cannot drive an automobile or perform daily activities such as shopping and care for her disabled family member because of the bilateral knee disabilities. She has not received any on-going treatment, therapy, or recommendations for surgical intervention during the entire period of the appeal. Therefore, the Board finds that consideration of a TDIU rating for the bilateral knee disabilities is not warranted because the Veteran is not precluded from forms of sedentary employment such as receptionist, call center operator, or other clerical or administrative positions that afford the opportunity for breaks and do not require extensive mobility.
Non-Service-Connected Pension Claim
A pension is payable to Veterans of a period of war because of nonservice-connected disability or age. Basic entitlement exists if the Veteran served in the active military, naval, or air service for 90 days or more during a period of war and is 65 years of age or older; or is permanently and totally disabled from non-service-connected disability, not the result of the Veteran's willful misconduct; and meets certain net worth and annual income requirements. 38 U.S.C.A. § 1513, 1521; 38 C.F.R. § 3.3. A Veteran is considered permanently and totally disabled if the Veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person: or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B).
In this case, service personnel records showed that the Veteran served on active duty for greater than 90 days during the Persian Gulf War. Therefore, the Veteran meets the service requirement.
The Veteran was born in 1957 and is not 65 years of age or older. The Veteran has not reported and the record does not show an award of benefits by the Commissioner of Social Security or that the Veteran is a patient in a nursing home at any time since the receipt of the claim in April 1997.
Therefore, the remaining criteria for consideration is whether the Veteran is permanently and totally disabled as a result of disabilities or whether the disabilities result in unemployability, and in either case, whether the disabilities are reasonably certain to continue throughout the Veteran's life. During the entire period since the receipt of claim for a pension in April 1997, the Veteran experienced the following diagnosed disabilities: mechanical low back pain, bilateral patellofemoral syndrome, asthma, sinusitis, cervical cancer, and a general anxiety disorder, later diagnosed as PTSD. These disabilities are all service-connected. VA has not determined that any of these diseases or disorders are of such nature or extent that they are permanently and totally disabling, such as amyotropic lateral sclerosis.
The Veteran experienced recurrent vaginitis during service which was later diagnosed as cervical dysplasia in 1996. The Veteran was rated as 100 percent disabled from this disease, effective August 14, 1995, the day following discharge from active service, but was successfully treated with antineoplastic chemotherapy with no residuals or recurrence of cancer. The disease has been rated as noncompensable since September 1, 1997.
As the Veteran credibly reported that she was employed for 10 years from 1997 through April 2007, the Veteran cannot be considered totally and permanently disabled prior to that date. Therefore, the Board will evaluate whether the Veteran's disabilities subsequent to April 2007 resulted in unemployability or inability to follow a substantially gainful occupation under the condition that it is reasonably certain that such disability or disabilities will continue throughout her life.
The Veteran does not claim nor do the records show that her asthma and sinusitis impair her employability. In April 2007, a VA physician noted that the Veteran experienced chronic nasal congestion and used a twice-daily nasal spray. The physician noted a significant septal deviation with near complete one-sided nasal blockage and advised corrective surgery, indicating that this disability could improve. In March 2012, a VA physician noted that the Veteran's asthma was mild and intermittent with no on-going treatment and that the Veteran continued to experience nasal congestion and post-nasal drip.
Referring to the assessment of the bilateral knee disabilities above, the Veteran has difficulty sitting, standing, and walking for extended time and distances, has difficulty climbing stairs, and occasionally uses a brace or cane. Although these impairments would restrict the activity of a roving security guard, the Veteran reported that her position was sedentary. The record also showed that she work for ten years under the same stable knee limitations prior to being laid off for the employer's financial situation. Therefore, the Board finds that the knee disabilities do not preclude sedentary forms of employment such as her sedentary security post or similar positions such as receptionist, telephone operator, or work at a computer workstation with opportunities to take breaks. Moreover, the Veteran has not participated in therapy or investigated surgical intervention that could improve the severity of the disabilities so that they need not be permanent and cannot reasonably be considered to impose impairment for the rest of the Veteran's life.
The Veteran's mechanical low back pain was evaluated on several occasions. In September 1995, a VA examiner noted some limitation of range of motion of the lumbar spine, but in October 1996, an X-ray of the lower spine was normal. In April 2007, a VA physician noted the Veteran's report of chronic low back pain on extended sitting, walking, and lifting. The Veteran used over the counter medication and surface patches but did receive regular treatment or therapy. On examination, the physician noted limitation in range of motion with pain but no muscle spasms or radiating pain to the lower extremities or bowel or bladder dysfunction. In March 2012, a VA general medical examiner noted the Veteran's report of similar symptoms and dysfunction and that the Veteran did not receive medical care but only used over the counter medications. This examiner found that the combined effects of the sinus, asthma, knee, and back disabilities prevented the Veteran from "securing or filing for gainful employment at this time." However, the physician further explained that the disabilities prevented extended walking, standing, and sitting necessary for work as a security officer.
Finally, the Veteran has an acquired psychiatric disorder variously diagnosed as anxiety, depression, and PTSD. In April 2000, a VA physician diagnosed dysthymic disorder and PTSD. The Veteran reported social isolation, difficulty sleeping, memory deficits, obsessive behaviors, irritability with coworkers, flashbacks, intrusive memories of traumatic events in service, and isolated and vague suicidal ideations with no plan. The Veteran reported receiving weekly mental health counseling but had no lost time at work. The examiner evaluated the disorders as imposing serious impairment. In March 2007, another VA mental health examiner noted similar symptoms and diagnosed PTSD. This examiner noted that the Veteran was no longer participating in any treatment or therapy and evaluated the disorder as imposing moderate impairment. In July 2012, a third VA examiner noted the same symptoms, diagnosed PTSD, and commented that the Veteran had difficulty adapting to stressful circumstances including those in a work-like setting and was unable to establish and maintain effective relationships. This examiner assessed the disorder as having mild and transient occupational impairment only during times of stress. This service-connected disability has been rated as 30 percent disabling from June 2004 and 70 percent disabling since July 2012.
The Board finds that all the Veteran's disabilities, individually or in combination, do not preclude all forms of substantially gainful employment and all are subject to improvement with medical care and therapy such that they are not reasonably certain to continue throughout the Veteran's lifetime. First, the lay and medical evidence shows a substantially stable level of severity of all disabilities with the exception of gradual improvements in the area of mental health over the period of the appeal since April 1997 to include 10 years when the Veteran was effectively employed. Second, there is little evidence that the Veteran has sought or cooperated with on-going VA medical care, therapy, or possible interventions for all the disabilities that have the capability of improvement over her lifetime. Third, the examiner in March 2012 who found that the Veteran was not employable considered only her return to a security guard position that required extended physical activity and did not consider sedentary positions as noted above that are consistent with her level of education, job experience, and level of impairment. The Veteran has received disability compensation at the 30, 50, 60, and 80 percent rate since 1997. The Board acknowledges that high ratings individually and in combination represent a significant level of impairment. The weight of competent and credible evidence is that the level of disability is not total because the Veteran retains some physical and mental capacity for sedentary forms of employment and because her disabilities are not shown to be reasonable certain to continue throughout her lifetime.
The Veteran meets the service requirements for a nonservice-connected pension but is employable and her disabilities are not permanent and total. Therefore, eligibility for a nonservice-connected pension is not warranted at any time during the period of this appeal. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to an initial rating greater than 10 percent effective April 21, 2000, for patellofemoral syndrome of the right knee is denied.
Entitlement to an initial rating of 20 percent, but no higher, effective April 21, 2000, for patellofemoral syndrome of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits.
Entitlement to a non-service-connected pension is denied.
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MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs